Judicial Independence and Impartiality

Mission

The South Carolina Bar's Judicial Independence and Impartiality Committee was created to provide appropriate and timely responses to criticism of judges and courts.

This committee is by appointment only.

Judicial Independence and Impartiality

The concept of judicial independence is central to the rule of law and to the checks and balances it supports in our constitutional democracy.

The preamble to the South Carolina Code of Judicial Conduct, Rule 501 states:

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

Why is judicial independence important?

Independent courts protect our freedoms, which are guaranteed by the U.S. Constitution. The written rights would mean little without independent and impartial courts to protect them.

An independent judiciary—the third and co-equal branch of government—acts fairly, is grounded in the rule of law and free from outside control or influence.

Courts and judges are accountable to the Constitution and laws—not ideologies, special interests or individuals. This framework, developed by our nation’s founders, guarantees that independent courts and judges remain faithful to the rule of law.

What are the consequences of attacks on judges and an independent judiciary?

When criticism of judges’ rulings crosses the line into personal attacks or intimidation, public respect for our justice system is undermined. This creates a threat to justice, the rule of law, our constitutional democracy, and freedom in general.

The SC Bar’s role

The South Carolina Bar, which serves more than 17,000 members and the public, is dedicated to advancing the legal profession in our state. The Bar’s mission includes promoting high quality legal education and continually improving the administration of justice throughout the Palmetto State.

The SC Bar’s Judicial Independence Committee, established by the Board of Governors, promotes the importance of an independent judiciary by:

Responding to unjust criticism when rules of conduct prevent individual judges from making public statements;
Addressing inaccuracies and misinformation reporting criticism of judges and courts;
Serving as a resource for unbiased information concerning judicial activities and court process; and
Educating the public on the role of judges and lawyers in our democracy.

When and How Committee responds

See full protocols outlined here.

Factsheet: Judicial Elections in South Carolina

About

South Carolina has a system of legislative, merit-based elections for most judicial positions.

Legislators choose judges from a pool of up to three candidates whom the Judicial Merit Selection Commission (JMSC) has deemed qualified for judicial office after receiving feedback from surveys, citizen review groups and the South Carolina Bar Judicial Qualifications Committee (JQC).

To assist South Carolinians in understanding the judicial selection process, the Judicial Independence and Impartiality Committee of the South Carolina Bar has prepared this fact sheet regarding the current process and its history, along with a brief commentary on the importance of having a fair and impartial judicial election process in which the impact of partisan politics is minimized.

Factsheet Udicial Elections In South Carolina Final For Web

How the process works

The South Carolina General Assembly elects Supreme Court justices and judges to the Court of Appeals, the Administrative Law Court, Circuit Court, and Family Court. Elections are held in a joint session of the General Assembly. Each member of the Senate and House of Representatives has one vote and, to be elected, a candidate must receive a majority of the votes cast.

Candidates for each of these judicial positions submit detailed applications to the JMSC, setting forth their background and experience. Prior to the election, all candidates are screened by the JMSC, which is comprised of four members of the public and six Senate and House members. The screening process includes:  

Interviews and evaluation by the SC Bar’s JQC. This includes at least 30 calls made to Bar members about each candidate for vacant judicial seats and 15 calls on incumbent judges. The JQC also conducts interviews with each candidate. The JQC makes its report to the JMSC with recommendations ranging from Well Qualified to Not Qualified.
Distribution by the JMSC of surveys about each candidate to all members of the Bench and Bar. 
Interviews by the Citizens Committee on Judicial Qualifications, which is comprised of up to 10 public members representing each of the state’s five districts: Lowcountry, Pee Dee, Midlands, Piedmont, and Upstate.
A public hearing before the JMSC.

South Carolina judges must stand for re-election every six years (every 10 years for the Supreme Court).  

Legislative delegations confirm the gubernatorial appointments of Masters-in-Equity. Probate judges are elected directly by the public. Magistrate and municipal judges are selected separately.

Improvements to the process

Updates were made to South Carolina’s judicial selection system in 1996, which is when the JMSC was formed. See Kevin Eberle, Judicial selection in South Carolina: who gets to judge? 13 SC Lawyer 6, 20-25 (2002). Prior to the changes, any person who met the constitutional age and residency requirements could be considered for a judgeship by the General Assembly. Now, the JMSC has the exclusive authority to nominate candidates for the General Assembly’s consideration.

Another key change in 1996 was the addition of a requirement that the JMSC forward the names of not more than three nominees to the General Assembly. Previously, the review panel did not have authority to remove names from consideration and sent all candidates—qualified or not—to the General Assembly for consideration. Legislators cannot seek judicial office until one year after leaving the General Assembly or one year after failing to file for reelection to the General Assembly. In addition, no member of the JMSC is eligible to run for a judge or justice position until having been off the JMSC for a year.

Finally, the law prohibits early campaigning by candidates and bans legislators from offering their pledge of support until after the JMSC formally releases its qualifications report. No legislator can trade anything of value, including a pledge to vote for legislation or for other candidates, in exchange for votes for a particular candidate.

Independence and impartiality critical to upholding rule of law

To dispense justice under the rule of law, the judicial branch must be independent of outside influences of any kind from any direction. It is crucial to the integrity of our justice system that judicial elections remain based upon the candidates’ qualifications alone, not the coercion of special interests. The introduction of political ideology into our justice system threatens the historical separation of powers and rule of law.

Members of the public, on their day in court, want to appear before an unbiased judge, elected not because of his or her allegiance to special interest groups or campaign contributors, but because of his or her qualifications to serve that office.

Other states use different methods for selecting judges, including appointment by the governor, usually with Legislative consent, much like the Federal system, and direct public election of judges. Every judicial selection method, however, includes an element of politics.

Public election of judges is typically funded in the same manner as other elections, bringing some risk of undue influence, or at least the appearance of influence, by campaign contributors. “While popular elections no doubt produce a judiciary more aware of popular sentiment, accountability to the public is cited by opponents as a hindrance to a judge's impartiality; an elected judge must contend not just with the pressure to please the masses, but also the need to please the donors to his or her campaign,” Kevin Eberle, Judicial Selection in South Carolina: Who Gets to Judge?, S.C. Law. 20, 22 (May/June 2002).

The appointment of judges by a governor avoids the campaign finance concerns of public elections, but places much of the power to select judges in the hands of a single elected official. By contrast, the South Carolina system requires that a candidate receive the support of a broad group of elected representatives.

South Carolina’s current system has been among the least affected by partisan politics, and its effectiveness in creating a high-quality bench has been noted by observers. As one author has asserted, “in spite of common criticisms, South Carolina's present system and process for judicial selection has improved since the reforms of 1996 and is now structured to better serve the State's needs. South Carolina's process for judicial selection, though not without flaws, has produced a highly-qualified judiciary that is now more diverse and operates effectively and independent of legislative control.” Ronald T. Scott, Judicial Selection in South Carolina: Is the Time Ripe for Systematic Restructuring and Improvement? You Be the Judge, 68 S.C. L. Rev. 743 (2017).

Although no system is without flaws, the current system in South Carolina is designed to provide a transparent process for judicial selection with meaningful opportunities for public input. Its goal is to elevate merit over partisan political considerations.